BILL NUMBER: AB 154	CHAPTERED  09/07/99

	CHAPTER   363
	FILED WITH SECRETARY OF STATE   SEPTEMBER 7, 1999
	APPROVED BY GOVERNOR   SEPTEMBER 7, 1999
	PASSED THE ASSEMBLY   AUGUST 26, 1999
	PASSED THE SENATE   AUGUST 23, 1999
	AMENDED IN SENATE   AUGUST 17, 1999
	AMENDED IN ASSEMBLY   MAY 18, 1999
	AMENDED IN ASSEMBLY   MAY 6, 1999
	AMENDED IN ASSEMBLY   APRIL 28, 1999

INTRODUCED BY   Assembly Member Cunneen
   (Principal coauthor:  Senator Vasconcellos)

                        JANUARY 15, 1999

   An act to amend Section 1424 of the Penal Code, relating to
criminal law.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 154, Cunneen.  Criminal law.
   Existing law provides for a motion to disqualify a district
attorney from performing an authorized duty, and provides that the
motion may not be granted unless the evidence shows that a conflict
of interest exists that would render it unlikely that the defendant
would receive a fair trial.
   The bill would revise procedural requirements applicable to the
motion.  It would require the notice to be made at least 10 court
days before the motion is heard.  It also would require the motion to
set forth grounds for disqualification, and be supported by
affidavits.  The bill would authorize the district attorney or
Attorney General to file affidavits in opposition, and would require
the court to review those affidavits and determine whether or not an
evidentiary hearing is necessary.  It would also provide that if the
motion is brought at or before the preliminary hearing, it may not be
renewed in the trial court on the basis of facts that were raised or
could have been raised at the time of the original motion.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 1424 of the Penal Code is amended to read:
   1424.  (a) (1) Notice of a motion to disqualify a district
attorney from performing an authorized duty shall be served on the
district attorney and the Attorney General at least 10 court days
before the motion is heard.  The notice of motion shall contain a
statement of the facts setting forth the grounds for the claimed
disqualification and the legal authorities relied upon by the moving
party and shall be supported by affidavits of witnesses who are
competent to testify to the facts set forth in the affidavit.  The
district attorney or the Attorney General, or both, may file
affidavits in opposition to the motion and may appear at the hearing
on the motion and may file with the court hearing the motion a
written opinion on the disqualification issue.  The judge shall
review the affidavits and determine whether or not an evidentiary
hearing is necessary.  The motion may not be granted unless the
evidence shows that a conflict of interest exists that would render
it unlikely that the defendant would receive a fair trial.  An order
recusing the district attorney from any proceeding may be reviewed by
extraordinary writ or may be appealed by the district attorney or
the Attorney General.  The order recusing the district attorney shall
be stayed pending any review authorized by this section.  If the
motion is brought at or before the preliminary hearing, it may not be
renewed in the trial court on the basis of facts that were raised or
could have been raised at the time of the original motion.
   (2) An appeal from an order of recusal or from a case involving a
charge punishable as a felony shall be made pursuant to Chapter 1
(commencing with Section 1235) of Title 9, regardless of the court in
which the order is made.  An appeal from an order of recusal in a
misdemeanor case shall be made pursuant to Chapter 2 (commencing with
Section 1466) of Title 11, regardless of the court in which the
order is made.
   (b) (1) Notice of a motion to disqualify a city attorney from
performing an authorized duty involving a criminal matter shall be
served on the city attorney and the district attorney at least 10
court days before the motion is heard.  The notice of motion shall
set forth a statement of the facts relevant to the claimed
disqualification and the legal authorities relied on by the moving
party.  The district attorney may appear at the hearing on the motion
and may file with the court hearing the motion a written opinion on
the disqualification issue.  The motion may not be granted unless the
evidence shows that a conflict of interest exists that would render
it unlikely that the defendant would receive a fair trial.
   (2) An order recusing the city attorney from a proceeding may be
appealed by the city attorney or the district attorney.  The order
recusing the city attorney shall be stayed pending an appeal
authorized by this section.  An appeal from an order of
disqualification in a misdemeanor case shall be made pursuant to
Chapter 2 (commencing with Section 1466) of Title 11.
   (c) Motions to disqualify the city attorney and the district
attorney shall be separately made.
